In support of their Motion for Remand, Plaintiffs argue that: (1) the Central District Judge's prior order remanding the case to the Circuit Court of Cook County is not subject to review, reconsideration or appeal; (2) this case does not arise under the Price-Anderson Amendments Act of 1988; (3) the Price-Anderson Amendments Act is an unconstitutional grant of jurisdiction in violation of Article III of the United States Constitution; and (4) the Price-Anderson Amendments Act violates the Tenth and the Fifth Amendment of the United States Constitution.

ANALYSIS

Reconsideration of the Central District Judge's Order Remanding the Case to the Circuit Court of Cook County

Citing 28 U.S.C. § 1447(d), Plaintiffs assert that the Central District Judge's order remanding the case to the Circuit Court of Cook County is not reviewable. Section 1447(d) states in relevant part, "an order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise . . ." 28 U.S.C. § 1447(d).

A motion to remand the case on the basis of any defect in removal procedure must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgement it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.

28 U.S.C. § 1447(c) (1993). Thus, only orders which remand a case to state court based on a timely motion asserting a procedural defect or on a lack of federal subject matter jurisdiction are not reviewable. Hamilton, 5 F.3d at 644.

Additionally, Plaintiffs argue that the doctrine of res judicata or the law of the case bars this Court's reconsideration of the Central District Judge's prior order remanding the case to the Circuit Court of Cook County. Again, the Court is not persuaded. First, this Court does not find any evidence that the Judge decided the issue of whether the federal courts have jurisdiction over this case pursuant to the Price-Anderson Amendments Act of 1988. The Judge remanded the case sua sponte stating only that the case "was improperly removed to the District Court under 28 U.S.C. 1441." (Docket Entry dated September 24, 1993; Defendant's Exhibit B.) Second, even if this Court determined that the Judge decided whether jurisdiction and venue were proper in the Central District of Illinois, this Court would nevertheless be free to reconsider that decision under the law of the case doctrine.

It is true that under the law of the case doctrine, when a district judge renders a decision in a case and that case is transferred to another judge, the successor should not ordinarily overrule the earlier decision. Bridge v. Delta Airlines, Inc., 597 F. Supp. 448, 453 (1984). However, the law of the case doctrine also provides that "a ruling in a case is subject to modification when it is subsequently found to be erroneous, is no longer sound, or would work an injustice." Id.

The Price Anderson Amendments Act of 1988

Section 2210(n)(2) of the Price Anderson Amendments Act of 1988 provides for removal of, and original jurisdiction over claims arising from any "nuclear incident." Section 2210(n)(2) reads as follows:

With respect to any public liability action arising out of or resulting from a nuclear incident, the United States district court in the district where the nuclear incident takes place . . . shall have original jurisdiction without regard to the citizenship of any party or the amount in controversy. Upon motion of the defendant or of the Commission, or the Secretary, as appropriate, any such action pending in any State court . . . or United States district court shall be removed or transferred to the United States district court having venue under this subsection. Process of such district court shall be effective throughout the United States.

42 U.S.C. § 2210(n)(2).

Contrary to the Plaintiffs' contentions, this Court holds that the present case falls within the purview of the Price-Anderson Amendments Act. The term "public liability" means any legal liability arising out of or resulting from a nuclear incident. 42 U.S.C. § 2014(w). The term "nuclear incident" means any occurrence, including an extraordinary nuclear occurrence within the United States causing bodily injury, sickness, disease or death arising out of or resulting from the radioactive, toxic, explosive or other hazardous properties of source, special nuclear or by-product material. 42 U.S.C. § 2014 (q).

i. The radioactive material discharged or dispersed from the location over a period of days, weeks, months or longer . . .

10 CFR § 140.92 (1993) (emphasis supplied). From the definition of "nuclear incident" outlined above, this Court concludes that there is no evidence that the Plaintiffs' injuries must result from an isolated nuclear event or occurrence. To the contrary, in this Court's opinion, based on the purpose and language of the Price-Anderson Amendments Act, it is the intent of the United States Congress that nuclear cases of this nature be tried in federal court. Thus, this Court holds that the Plaintiffs' claim falls within the purview of the Price-Anderson Amendments Act. See also, Coley v. Commonwealth Edison, 768 F. Supp. 625, 626-28 (N.D. Ill. 1991) (holding that removal to federal court was proper under the Price-Anderson Amendments Act where plaintiff sought damages for occupational exposure to radiation for six months prior to his child's conception.)

Since this Court holds that Plaintiffs' cause of action falls within the purview of the Price Anderson Amendments Act, this Court must deny the Plaintiffs' Motion to Remand and grant the Defendants' Motion to Transfer this case to the United States District Court for the Central District of Illinois, Rock Island Division. See, 42 U.S.C. § 2210(n)(2). Section 2210(n)(2) directs this Court to transfer this case to the United States district court for the Central District of Illinois since it is the federal district court in the district where the nuclear incident took place. Id.

As this Court finds that Plaintiffs' claim does fall within the purview of the Price-Anderson Amendments Act, and thus pursuant to Section 2210(n)(2), this Court must, upon the motion of the defendants, transfer the case to the district court where the nuclear incident took place, this Court does not address Plaintiffs' arguments regarding the constitutionality of the Price-Anderson Amendments Act.

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